It was about this time a week ago that the majority party in Congress was organizing legislation to limit the scope of the War in Iraq. The plan would have limited American troops to guarding the Iraqi border, training their policy and military, and fighting al Qaeda. The plan, fortunately, has been scrapped (or at least put on hold).
Had this plan been put to a vote it would have been a very negative development, but not because having the troops do only those things is a bad idea.
Let's suppose for a second that the Reid, Pelosi, et. al. had put this measure to a vote, and let's further suppose that it was able to get through both houses (highly unlikely). What would happen next? Obviously, a Presidential veto. On one hand, this could have been a great political move for the Left. They know full well that the American people support the position of "drawing down", "limiting the scope", and eventually bringing the troops home. Putting this to a vote would then put the GOP in the position of either abandoning the party or abandoning their principles. Either way, they lose, and the GOP in general gets the "bad guy" label. When 43 then vetoes the bill, he looks even worse (if such a thing is possible for someone with his approval ratings).
The immediate political implications could have been huge, but the scope of the implications would have been significantly larger.
In my view, such a bill would be unconstitutional.
I have read articles by Constitutional scholars debating this issue, and many would disagree with me. Congress, even today, has asked Baker and Hamilton to get back into the business of commission-leading and study whether or not Congress has such a power. Clearly it is up for debate. Since I have the pleasure of getting paid to study and teach the Constitution, I would like to lay out my case that such a move by the Democrats would be a violation of our founding document.
First, the words of the Constitution regarding the Executive's war power:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United StatesNow here is what it says about the war powers of Congress:
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States....That's pretty lengthy, but when it is said and done, the bottom line for the two is this: Congress provides (read: pays for) the military, and sets it in motion. Once in motion, the President determines how to use it. Many disagree with me, and some of them have good points. But it seems that many of the explainations I have heard rely more on international law and questionable interpretations of Supreme Court rulings. The intent of the Founders seem to be that, despite the fact that most Americans disapprove of how President Bush has handled this war, he still has the Constitutional authority to be the Decider.
The Congressional establishment of a panel to study this issue, combined with the fact that the Democrats have backed off of this proposal, may suggest that they too see the questionable Constitutionality of this move.
It brings me hope that perhaps our Constitutuion still holds the weight it was intended to hold when it was written. With activist judges and groups like the ACLU all too willing to assault our Constitution and read in our modern political sensibilities to the Founders words, it is refreshing to think (however remote the odds may be) that maybe this once reverance for the Constitution had a hand in overriding politics. Maybe.
4 comments:
Congress gave the Executive branch way too much power with the resolution authorizing the Iraq war, from what I understand. Could you discuss that and maybe explain to me why Congress no longer declares war like they used to? And what about revoking the 2002 authorization and reauthorizing the President to wage a war with a more limited scope? Also, can you elaborate on that two year limit mentioned in your excerpt?
Interesting.
-JW
Are you dead?
Happily, danny. Thanks for your comment.
First the 2002 war authorization. Though the actual resolution giving the President the power to use forced is very lengthy, there is really only one section that is relevant to the actual giving of power:
"SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq."
As far as giving the Executive "way too much power", I would generally disagree with that statement on the grounds that to say that would be reading back into the bill something Congress never could have known on Oct. 2, 2002 (namely, that the war would be the mess that it is now). Hypothetically, if Congress could have foreseen the struggle we are in now, it would be quite correct to say that they gave the Executive way too much power. They could have, at that time, set limits on the scope of the war or put in a procedure about what will happen after the "official conflict" ends. They did not do so in large part because much of what we now see in hindsight was not apparent back then.
Why does Congress no longer declare war like they used to? That is slightly more complicated, but we can deduce two important reasons why:
-Politics: it is much easier to just put the power in the hands of the President. That way any fall out lands more on him/her than on Congress. The flip side is that more of the praise goes to the Executive as well, but as 1991/2 proved, America is more likely to see the bad than the good.
-International Relations: In 1941 America was going to war with Japan no matter what anyone thought. There was no United Nations (or League of Nations, for that matter). It was a decidedly American response. Every conflict since then has been some hodge-podge coalition or UN effort (or in the case of Vietnam, a French/American/Tonkin Gulf thing). That complicates matters since mobilization of forces requires much more than just an American declaration of war. It requires a consensus.
As far as revoking the authorization, I would argue that falls in the same category as limiting the scope of war. The part of the Constitution that states that the Executive has decision-making power when troops are in "actual service" would seem to bar such a move. If Congress wants to end the War they can, but they must do it in a Constitutional fashion. The only method by which they can do so is to refuse funding. No money, no bullets, no war. While that would be a political suicide mission, that is the Constitutional way to do it.
Last part, that two-year limit is somewhat of a moot point in modern day. Now we actually renew the budget every year. Back then, that was not the case. Congress could meet and say "the post office gets $1 million dollars over the next 10 years". They wanted to ensure that Congress served as a check to the President by giving them the power of the purse. They could not authorize automatically renewing payments, or a yearly sum for more than two years. Now, that is not an issue since Congress and the President work out a budget on a yearly basis. That is why President Bush has to keep going back to Congress and beg for another $87 billion or whatever.
Hope that answers at least some of it.
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